## 2. The Tribunal, or, when the Tribunal is not in session, the President after

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---

### INTRODUCTION
- Applicant challenges the Director of the Human Resources Department (HRD) decision that Applicant:
  - “failed to afford . . . fair and reasonable treatment” to a G-5 household employee; and
  - “engaged in conduct that reflected adversely on the Fund,” in violation of Staff Handbook, Ch. 11.01 (Standards of Conduct), Annex 11.01.8 (Requirements for the Employment of G-5 Employees).
- HRD Director imposed a “disciplinary” measure: a formal written reprimand to remain in Applicant’s personnel file for three years (Staff Handbook, Ch. 11.02 (Misconduct and Disciplinary Procedures), Section 8.1(ii)).
- HRD Director separately took an “administrative” decision that:
  - directed Applicant to end the employment of a different G-5 employee who remains employed in Applicant’s household; and
  - stated that the Fund would not be able to support applications made by Applicant for G-5 visas in the future.
- HRD Director stated the “administrative” decision was made “in the interests of the Fund,” due to the “position communicated to [the Fund] by the [U.S.] State Department.”
- Applicant challenges both the “disciplinary” and the “administrative” decisions. Applicant’s Request for Provisional Relief concerns the “administrative” decision. Respondent seeks partial dismissal of Applicant’s challenge to the “administrative” decision.

### APPLICANT’S REQUEST FOR ANONYMITY
- Applicant requested anonymity pursuant to Rule XXII where “good cause has been shown for protecting the privacy of an individual.”
- Respondent supports Applicant’s request for anonymity given allegations of misconduct and personal privacy matters involving members of Applicant’s household.
- Tribunal noted precedent where anonymity was granted in misconduct or privacy-related cases: IMFAT Judgment No. 2006-5 (November 27, 2006), IMFAT Judgment No. 2010-4 (December 3, 2010), IMFAT Judgment No. 2007-4 (May 23, 2007).
- Tribunal decision:
  - Applicant’s request for anonymity is granted because the case involves a challenge to a misconduct decision and evidence implicates personal privacy of Applicant and others.

### ADMISSIBILITY OF APPLICANT’S COMMENT ON NEW EVIDENCE
- Timeline and filings:
  - October 2, 2019: Applicant sought to file a Comment on New Evidence responding to documents produced by the Fund in its Further Comment of September 26, 2019, and responding to the Fund’s request to strike a document.
  - October 9, 2019: Respondent stated it does not object to Applicant commenting on the later produced documents, but asked the Tribunal to disregard portions of Applicant’s Comment that relate to the merits of the disciplinary decision.
- Tribunal ruling:
  - The Tribunal will take account of Applicant’s Comment on New Evidence and the Fund’s Response insofar as they inform decisions in this Order.

### APPLICANT’S REQUESTS FOR PRODUCTION OF DOCUMENTS AND RESPONDENT’S REQUEST TO STRIKE A DOCUMENT FROM THE RECORD
- Tribunal asked the Fund to respond to Document Requests Nos. 2 and 3 in the expedited exchange for provisional relief addressing:
  - (a) whether it had any responsive documents;
  - (b) if so, whether it opposed production and on what grounds; and
  - (c) if not opposed, to include such documents with its Response.

Applicant’s Document Request No. 2
- Request No. 2 seeks “production of all written communications, notes of conversation, and all other materials relating to the Fund’s communications with any and all parts of the U.S. Government, including specifically the State Department, with regard to the situations of [Applicant] and [the current G-5 employee].”
- Fund representation and production:
  - Fund stated it had previously provided “all known, non-privileged materials related to conversations with the State Department regarding the situation of [Applicant] and [the current G -5 employee]” and attached those documents to its Response.
  - In a Further Comment the Fund acknowledged inadvertent omission of two documents and attached them subsequently; the Fund asserts it has now produced all documents responsive to Request No. 2.
- Tribunal conclusion:
  - Given that merits proceedings will continue, the Fund remains under a continuing obligation to produce any documents responsive to Applicant’s Document Request No. 2.
  - This obligation includes that the Fund shall respond, in its Answer on the merits, to the document requests Applicant asserts at paragraph 17 of Applicant’s Comment on New Evidence.

Respondent’s Motion to Strike
- Facts and positions:
  - Fund stated it inadvertently produced an email from an HRD official to Fund counsel “seeking legal advice,” asserting it is “privileged attorney-client communication,” and requested the document and all references to it be struck from the record.
  - Applicant contends there is no basis to withdraw the produced document and claims it is “exceptionally relevant” to Fund–State Department interactions.
- Tribunal finding:
  - The document is shielded by attorney-client privilege and was inadvertently disclosed.
  - The document will be struck from the record.
  - Neither the document nor Applicant’s references to it shall be taken into consideration by the Tribunal.

Applicant’s Document Request No. 3
- Request No. 3 seeks “production of a written report on the history and scope of the Fund’s G5 program, including all controversies, revocations of privileges, and any other noteworthy events, involving the Fund’s G5 program.”
- Fund objection:
  - Fund objects as overbroad, unduly burdensome, and improperly infringing on privacy; asserts Article X of the Tribunal’s Statute and Rule XVII do not require creation of new documents and that discovery is for existing documents.
- Tribunal conclusion under Rule XVII, para. 2:
  - The request that the Fund create a written report would be “unduly burdensome” and overbroad.
  - Applicant’s Document Request No. 3 is denied.

### FACTUAL BACKGROUND
- Key summarized facts:
  - Applicant is a Fund staff member at Washington, D.C. headquarters holding a G-4 visa.
  - Applicant currently employs in her household a G-5 visa holder; G-5 visas are designated for household employees of G-4 visa holders.
  - In July 2017 Applicant briefly employed a second G-5 visa holder while retaining the first; the second departed within days and filed complaints with the U.S. State Department and the IMF Ethics Office.
  - Facts surrounding that second G-5 employee’s time in the household and termination are disputed and form the basis of the misconduct decision contested.
- Investigation and HRD decision timeline and content:
  - The G-5 visa holder’s complaint to the IMF Ethics Office was investigated by the Office of Internal Investigations (OII).
  - Applicant was given opportunities to respond to the Notice of Investigation and submitted Comments on the Report of Investigation.
  - HRD Director’s operative decision of June 11, 2018, included:
    - Conditional disciplinary decision: if Applicant provides proof of contractually required payment to the former G-5 by June 25, 2018, the disciplinary measure would be a formal written reprimand to remain on personnel file for three years; final decision after June 25.
    - HRD had also decided to impose, as a second disciplinary measure, forfeiture of Fund support for any new G-5 employee for four years from July 24, 2017 and until Applicant completed management training approved by HRD; HRD stated that information from the State Department required administrative action making this second disciplinary measure redundant.
    - HRD described the State Department’s position as: it had “lost confidence in your ability to maintain a proper relationship with a G-5 domestic worker” and that in practice it will not authorize a G-5 visa in future where there is any evidence of non-compliance with G-5 program requirements; State Department indicated it would adversely affect the Fund’s reputation for a Fund-supported G-5 employee to remain in Applicant’s employment.
    - Administrative decisions taken “in the interests of the Fund”:
      i. direct Applicant to end the current G-5 employee’s employment in Applicant’s household no later than September 10, 2018; and
      ii. the Fund will not be able to support applications made by Applicant for a G-5 visa in future.
    - HRD clarified these two decisions were administrative, not disciplinary; the current G-5 employee remains free to seek other G-5 employment and the Fund offered assistance in advertising her services.
  - In a follow-up decision of July 24, 2018, after Applicant paid the former G-5 employee the contractually required payment, the HRD Director implemented the written reprimand for three years as the “final decision” on the disciplinary measure.
- Status of the administrative decision and visa:
  - Although the June 8, 2018 decision directed termination by September 10, 2018, the HRD Director suspended that decision a number of times.
  - The Fund states the current employee’s G-5 visa had expired in April 2017 but she may remain in the United States under an I-94 Form valid until November 4, 2019.
  - The Tribunal understands the G-5 employee must leave the United States by November 4, 2019 unless granted a new G-5 visa, which given the contested decision would require employment with a G-4 visa holder other than Applicant.

### CHANNELS OF ADMINISTRATIVE REVIEW
- Administrative steps taken and decisions:
  - October 2, 2018: Applicant sought reconsideration by the HRD Director based on alleged material new evidence; request denied on October 19, 2018.
  - November 27, 2018: Applicant filed a Grievance with the Fund’s Grievance Committee challenging the finding of misconduct and the HRD Director’s disciplinary and administrative decisions; Applicant sought provisional relief to suspend the termination of her current G-5 employee.
  - June 8, 2019: Grievance Committee dismissed for lack of jurisdiction the portion of the Grievance challenging the decision to bar Applicant from employing G-5 employees and denied Applicant’s request for provisional relief; Committee also found Applicant had not shown “irreparable harm” required for interim relief; Committee did not address merits of the misconduct case.
  - Following the Grievance Committee decision, HRD again suspended implementation of the decision to terminate the current G-5 employee pending consideration by the Administrative Tribunal of a request for provisional relief if filed by August 12, 2019.
  - June 25, 2019: Parties agreed pursuant to Article V(4) of the Tribunal’s Statute to bring the case directly to the Tribunal; the case was removed from the Grievance Committee docket.
  - August 12, 2019: Applicant filed her Application with the Administrative Tribunal. The decision directing termination of the current G-5 employee remains suspended until the Tribunal rules on the Request for Provisional Relief.

### APPLICANT’S REQUEST FOR PROVISIONAL RELIEF
- Applicant requested provisional relief in the form of an order:
  1. prohibiting the Fund from requiring the current G-5 employee’s dismissal from Applicant’s home during the pendency of the case; and
  2. requiring the Fund to secure all necessary visa actions by the State Department (e.g., an I94 renewal) to permit the G-5 employee’s continued employment by Applicant during the pendency of the case.
- Applicant’s factual assertions and claims of irreparable harm:
  - Retention of the current G-5 employee as a G-5 employee “depends on [that employee] being in situ when the Tribunal issues its Judgment.”
  - The G-5 employee will be sent back to her home country “without a job, or any particular job prospects;”
  - Despite “substantial effort” the G-5 employee has not secured a comparable replacement position with another G-4 household in the Washington area;
  - The employee’s “avoidable banishment to poverty” is a “textbook example of irreparable harm;”
  - Applicant’s children will “have their beloved nanny removed from their home” and “Harming children is another textbook example of irreparable harm.”
- Applicant relies on the Fund’s official Commentary on Article VI(4) to support claim of irreparable injury.

### Provisional relief: legal standard and application
- Legal framework and precedents:
  - Provisional relief is an extraordinary measure, available only in limited circumstances; Article VI, Section 4 of the Statute states that the “filing of an application shall not have the effect of suspending the implementation of the decision contested.” (Emphasis added.)
  - The consolidated Commentary on the Statute (Commentary, p. 27) acknowledges that the Tribunal “would not preclude” ordering interim measures “if warranted by the circumstances of a particular case.”
  - The Commentary elaborates that:
    - The filing of an application does not stay the effectiveness of the decision being challenged.
    - This rule ensures efficient operation of the organization and avoids disruption of day-to-day administration and disciplinary measures.
    - Courts are loath to find “irreparable” injury in employment contexts given the possibility of compensatory relief.
    - In potential cases where an applicant in G-4 visa status would be out of visa status pending remedies, it would be preferable to address the issue in the staff rules on leave.
  - Tribunal precedent cited:
    - IMFAT Order No. 2015-1 (November 13, 2015): denied provisional relief where requests did not seek suspension of any decision contested in the Tribunal.
    - IMFAT Order No. 2016-1 (June 28, 2016): denied provisional relief where applicant failed to show irreparable harm.
    - IMFAT Judgment No. 2017-2 (December 11, 2017): request for maintaining G-4 visa status was premature where Fund had discretion to extend administrative leave without pay.

### Tribunal’s factual and legal findings on Applicant’s Request for Provisional Relief
- Two-pronged Request for Provisional Relief:
  - First prong: suspend the Fund’s decision that Applicant terminate employment of her current G-5 employee during the pendency of the Tribunal proceedings.
  - Second prong: order the Fund to “secure all necessary visa actions by the State Department” to permit the current G-5 employee to remain in Applicant’s employment during the Tribunal proceedings.
- Tribunal rulings on the two prongs:
  - The second prong does not seek suspension of a decision contested in the Tribunal and is denied on that ground.
  - The first prong does seek suspension of a decision contested in the Tribunal, but the Tribunal need not decide whether it has jurisdiction over that decision because Applicant failed to demonstrate the essential requirement for provisional relief: “irreparable harm.”
- Specific findings relevant to “irreparable harm”:
  - Applicant has been on notice for more than a year of the decision that the G-5 employee must leave her household.
  - Applicant had ample opportunity to make alternate employment arrangements with non-G-5 visa holders.
  - The Tribunal concluded Applicant has not shown that separation of the G-5 visa holder from her employment will result in “irreparable harm” to Applicant.
- Claim on behalf of the G-5 employee:
  - The Commentary contemplates that wrongful termination of a G-4 staff member might be “irreparable harm” in some contexts and should be addressed in staff rules; however, the circumstances here involve loss of employment by a G-5 visa holder as collateral to disciplinary action taken against the G-4 employer/staff member.
  - The Fund’s rules and the Tribunal’s Statute address the employment relationship between the Fund and its own staff; the Tribunal concluded that Applicant has not met the requirements for securing provisional relief on behalf of her current G-5 employee.

### Respondent’s assertions and Motion to Dismiss in Part
- Respondent’s assertions:
  - Tribunal lacks jurisdiction over Applicant’s challenge to the decision to terminate Applicant’s eligibility to be a G-5 employer because the decision was effectively made by the U.S. State Department rather than by the Fund.
  - The decision is not an “administrative act” of the Fund as defined by Article II of the Statute.
  - Irreparable harm would arise to the Fund and other staff if the current G-5 employee’s stay were extended, potentially jeopardizing the Fund’s entire G-5 program; Respondent cites a U.S. Secretary of State Diplomatic Note, September 19, 2018, warning that failure to meet G-5 program requirements may lead the U.S. Government to “suspend participation in the program by declining to accept pre-notification requests of upcoming domestic workers for the mission member, or for all members of the mission if warranted by the circumstances.”
  - Evidence that the State Department decided to “temporarily hold off domestic worker registration renewal appointments” for G-5 visa holders employed by Fund staff while the Fund complies with a requested review of all current G-5 contracts and wages.
- Applicant’s counter-assertions:
  - Applicant alleges the Fund “actively colluded with the State Department,” that the “Fund rather than the State Department . . . determined the outcome requiring [Applicant] to fire [the current G-5 employee],” and that the “Fund actively inculpated its own staff member before the State Department.”
  - Applicant’s Comment on New Evidence argues documents newly produced support the view that the Fund and the U.S. State Department collaborated in the investigation and sanctions.
- Motion to Dismiss in Part—admissibility and disposition:
  - Tribunal recognized neither the Statute nor the Rules explicitly contemplate a Motion to Dismiss in Part but found circumstances in which such a motion may be admissible.
  - Given the expedited preliminary pleadings under Rule XXI, the Tribunal admitted the Motion to Dismiss in Part because its argumentation was closely related to Respondent’s argument against provisional relief.
  - On the merits, the Tribunal concluded it was better to decide issues, including the relationship between the HRD Director’s decision and the actions of the U.S. State Department, after full briefing on the merits rather than in a piecemeal summary dismissal.
  - The Tribunal dismissed Respondent’s Motion to Dismiss in Part without prejudice to raising the same arguments in pleadings on the merits.

### Order and procedural directives
- The Tribunal ordered:
  1. Applicant’s Request for Anonymity is granted.
  2. Respondent remains under a continuing obligation to produce any documents responsive to Applicant’s Document Request No. 2.
  3. Respondent’s Motion to Strike a document from the record is granted.
  4. Applicant’s Document Request No. 3 is denied.
  5. Applicant’s Request for Provisional Relief is denied.
  6. Respondent’s Motion to Dismiss in Part is dismissed without prejudice to Respondent’s right to raise in its pleadings on the merits a challenge to the justiciability of Applicant’s challenge to the “administrative” decision.
  7. The proceedings on the merits shall resume in accordance with the schedule notified to the parties along with this Order.
- Signatories:
  - Catherine M. O’Regan, President
  - Andrés Rigo Sureda, Judge
  - Edith Brown Weiss, Judge
  - /s/ Catherine M. O’Regan, President
  - /s/ Celia Goldman, Registrar
- Location and date: Washington, D.C., October 10, 2019.

*IMF Administrative Tribunal Order, Washington, D.C., October 10, 2019.*

### 2. The Tribunal, or, when the Tribunal is not in session, the President after

### 2. The Tribunal, or, when the Tribunal is not in session, the President after

### INTRODUCTION
- Applicant challenges the Director of the Human Resources Department (HRD) decision that Applicant:
  - “failed to afford . . . fair and reasonable treatment” to a G-5 household employee; and
  - “engaged in conduct that reflected adversely on the Fund,” in violation of Staff Handbook, Ch. 11.01 (Standards of Conduct), Annex 11.01.8 (Requirements for the Employment of G-5 Employees).
- The HRD Director imposed a “disciplinary” measure: a formal written reprimand to remain in Applicant’s personnel file for three years (Staff Handbook, Ch. 11.02 (Misconduct and Disciplinary Procedures), Section 8.1(ii)).
- The HRD Director separately took an “administrative” decision that:
  - directed Applicant to end the employment of a different G-5 employee who remains employed in Applicant’s household; and
  - stated that the Fund would not be able to support applications made by Applicant for G-5 visas in the future.
- The HRD Director stated the “administrative” decision was made “in the interests of the Fund,” due to the “position communicated to [the Fund] by the [U.S.] State Department.”
- Applicant challenges both the “disciplinary” and the “administrative” decisions. Applicant’s Request for Provisional Relief concerns the “administrative” decision. Respondent seeks partial dismissal of Applicant’s challenge to the “administrative” decision.

### APPLICANT’S REQUEST FOR ANONYMITY
- Applicant requested anonymity pursuant to Rule XXII where “good cause has been shown for protecting the privacy of an individual.”
- Respondent supports Applicant’s request for anonymity given allegations of misconduct and personal privacy matters involving members of Applicant’s household.
- Precedent cited where anonymity was granted in misconduct or privacy-related cases: IMFAT Judgment No. 2006-5 (November 27, 2006), IMFAT Judgment No. 2010-4 (December 3, 2010), IMFAT Judgment No. 2007-4 (May 23, 2007).
- The Tribunal grants Applicant’s request for anonymity because the case involves a challenge to a misconduct decision and evidence implicates personal privacy of Applicant and others.

### ADMISSIBILITY OF APPLICANT’S COMMENT ON NEW EVIDENCE
- On October 2, 2019, Applicant sought to file a Comment on New Evidence responding to documents produced by the Fund in its Further Comment of September 26, 2019, and responding to the Fund’s request to strike a document.
- On October 9, 2019, Respondent submitted a Response stating it does not object to Applicant commenting on the later produced documents, but asked the Tribunal to disregard portions of Applicant’s Comment that relate to the merits of the disciplinary decision.
- The Tribunal will take account of Applicant’s Comment on New Evidence and the Fund’s Response insofar as they inform decisions in this Order.

### APPLICANT’S REQUESTS FOR PRODUCTION OF DOCUMENTS AND RESPONDENT’S REQUEST TO STRIKE A DOCUMENT FROM THE RECORD
- Tribunal asked the Fund to respond to Document Requests Nos. 2 and 3 in the expedited exchange for provisional relief, specifically:
  - (a) whether it had any responsive documents;
  - (b) if so, whether it opposed production and on what grounds; and
  - (c) if not opposed, to include such documents with its Response.

Applicant’s Document Request No. 2
- Request No. 2 seeks “production of all written communications, notes of conversation, and all other materials relating to the Fund’s communications with any and all parts of the U.S. Government, including specifically the State Department, with regard to the situations of [Applicant] and [the current G-5 employee].”
- The Fund stated it had previously provided “all known, non-privileged materials related to conversations with the State Department regarding the situation of [Applicant] and [the current G -5 employee]” and attached those documents to its Response.
- In a Further Comment the Fund acknowledged inadvertent omission of two documents and attached them subsequently; the Fund asserts it has now produced all documents responsive to Request No. 2.
- Tribunal conclusion:
  - Given that merits proceedings will continue, the Fund remains under a continuing obligation to produce any documents responsive to Applicant’s Document Request No. 2.
  - This obligation includes that the Fund shall respond, in its Answer on the merits, to the document requests Applicant asserts at paragraph 17 of Applicant’s Comment on New Evidence.

Respondent’s Motion to Strike
- The Fund stated it inadvertently produced an email from an HRD official to Fund counsel “seeking legal advice,” asserting it is “privileged attorney-client communication,” and requested the document and all references to it be struck from the record.
- Applicant contends there is no basis to withdraw the produced document and claims it is “exceptionally relevant” to Fund–State Department interactions.
- Tribunal finding:
  - The document is shielded by attorney-client privilege and was inadvertently disclosed.
  - The document will be struck from the record.
  - Neither the document nor Applicant’s references to it shall be taken into consideration by the Tribunal.

Applicant’s Document Request No. 3
- Request No. 3 seeks “production of a written report on the history and scope of the Fund’s G5 program, including all controversies, revocations of privileges, and any other noteworthy events, involving the Fund’s G5 program.”
- The Fund objects as overbroad, unduly burdensome, and improperly infringing on privacy; asserts Article X of the Tribunal’s Statute and Rule XVII do not require creation of new documents and that discovery is for existing documents.
- Tribunal conclusion under Rule XVII, para. 2:
  - The request that the Fund create a written report would be “unduly burdensome” and overbroad.
  - Applicant’s Document Request No. 3 is denied.

### FACTUAL BACKGROUND
- Key summarized facts:
  - Applicant is a Fund staff member at Washington, D.C. headquarters holding a G-4 visa.
  - Applicant currently employs in her household a G-5 visa holder; G-5 visas are designated for household employees of G-4 visa holders.
  - In July 2017 Applicant briefly employed a second G-5 visa holder while retaining the first; the second departed within days and filed complaints with the U.S. State Department and the IMF Ethics Office.
  - Facts surrounding that second G-5 employee’s time in the household and termination are disputed and form the basis of the misconduct decision contested.
- Investigation and HRD decision timeline:
  - The G-5 visa holder’s complaint to the IMF Ethics Office was investigated by the Office of Internal Investigations (OII).
  - Applicant was given opportunities to respond to the Notice of Investigation and submitted Comments on the Report of Investigation.
  - HRD Director’s operative decision of June 11, 2018, included:
    - Conditional disciplinary decision: if Applicant provides proof of contractually required payment to the former G-5 by June 25, 2018, the disciplinary measure would be a formal written reprimand to remain on personnel file for three years; final decision after June 25.
    - HRD had also decided to impose, as a second disciplinary measure, forfeiture of Fund support for any new G-5 employee for four years from July 24, 2017 and until Applicant completed management training approved by HRD; HRD stated that information from the State Department required administrative action making this second disciplinary measure redundant.
    - HRD described the State Department’s position as: it had “lost confidence in your ability to maintain a proper relationship with a G-5 domestic worker” and that in practice it will not authorize a G-5 visa in future where there is any evidence of non-compliance with G-5 program requirements; State Department indicated it would adversely affect the Fund’s reputation for a Fund-supported G-5 employee to remain in Applicant’s employment.
    - Administrative decisions taken “in the interests of the Fund”:
      i. direct Applicant to end the current G-5 employee’s employment in Applicant’s household no later than September 10, 2018; and
      ii. the Fund will not be able to support applications made by Applicant for a G-5 visa in future.
    - HRD clarified these two decisions were administrative, not disciplinary; the current G-5 employee remains free to seek other G-5 employment and the Fund offered assistance in advertising her services.
  - In a follow-up decision of July 24, 2018, after Applicant paid the former G-5 employee the contractually required payment, the HRD Director implemented the written reprimand for three years as the “final decision” on the disciplinary measure.
- Status of the administrative decision and visa:
  - Although the June 8, 2018 decision directed termination by September 10, 2018, the HRD Director suspended that decision a number of times.
  - The Fund states the current employee’s G-5 visa had expired in April 2017 but she may remain in the United States under an I-94 Form valid until November 4, 2019.
  - The Tribunal understands the G-5 employee must leave the United States by November 4, 2019 unless granted a new G-5 visa, which given the contested decision would require employment with a G-4 visa holder other than Applicant.

### CHANNELS OF ADMINISTRATIVE REVIEW
- October 2, 2018: Applicant sought reconsideration by the HRD Director based on alleged material new evidence; request denied on October 19, 2018.
- November 27, 2018: Applicant filed a Grievance with the Fund’s Grievance Committee challenging the finding of misconduct and the HRD Director’s disciplinary and administrative decisions; Applicant sought provisional relief to suspend the termination of her current G-5 employee.
- June 8, 2019: Grievance Committee dismissed for lack of jurisdiction the portion of the Grievance challenging the decision to bar Applicant from employing G-5 employees and denied Applicant’s request for provisional relief; Committee also found Applicant had not shown “irreparable harm” required for interim relief; Committee did not address merits of the misconduct case.
- Following the Grievance Committee decision, HRD again suspended implementation of the decision to terminate the current G-5 employee pending consideration by the Administrative Tribunal of a request for provisional relief if filed by August 12, 2019.
- June 25, 2019: Parties agreed pursuant to Article V(4) of the Tribunal’s Statute to bring the case directly to the Tribunal; the case was removed from the Grievance Committee docket.
- August 12, 2019: Applicant filed her Application with the Administrative Tribunal. The decision directing termination of the current G-5 employee remains suspended until the Tribunal rules on the Request for Provisional Relief.

### APPLICANT’S REQUEST FOR PROVISIONAL RELIEF
- Applicant requests provisional relief in the form of an order:
  1. prohibiting the Fund from requiring the current G-5 employee’s dismissal from Applicant’s home during the pendency of the case; and
  2. requiring the Fund to secure all necessary visa actions by the State Department (e.g., an I94 renewal) to permit the G-5 employee’s continued employment by Applicant during the pendency of the case.
- Applicant contends retention of the current G-5 employee as a G-5 employee “depends on [that employee] being in situ when the Tribunal issues its Judgment.”
- Applicant asserts irreparable injury if provisional relief is not urgently granted, relying on the Fund’s official Commentary on Article VI(4).
- Applicant’s specific assertions of irreparable harm include:
  - the G-5 employee will be sent back to her home country “without a job, or any particular job prospects;”
  - despite “substantial effort” the G-5 employee has not secured a comparable replacement position with another G-4 household in the Washington area;
  - the employee’s “avoidable banishment to poverty” is a “textbook example of irreparable harm;”
  - Applicant’s children will “have their beloved nanny removed from their home” and “Harming children is another textbook example of irreparable harm.”

*IMF Administrative Tribunal, o2019-1*

### 33. Respondent, for its part, maintains that the Tribunal does not have jurisdiction over

### o2019-1 - 33. Respondent, for its part, maintains that the Tribunal does not have jurisdiction over

### Provisional relief: legal standard and application
- Provisional relief is an extraordinary measure, available only in limited circumstances; Article VI, Section 4 of the Statute states that the “filing of an application shall not have the effect of suspending the implementation of the decision contested.” (Emphasis added.)
- The consolidated Commentary on the Statute (Commentary, p. 27) acknowledges that the Tribunal “would not preclude” ordering interim measures “if warranted by the circumstances of a particular case.”
- The Commentary elaborates that:
  - The filing of an application does not stay the effectiveness of the decision being challenged.
  - This rule ensures efficient operation of the organization and avoids disruption of day-to-day administration and disciplinary measures.
  - Courts are loath to find “irreparable” injury in employment contexts given the possibility of compensatory relief.
  - In potential cases where an applicant in G-4 visa status would be out of visa status pending remedies, it would be preferable to address the issue in the staff rules on leave.
- Tribunal precedent:
  - IMFAT Order No. 2015-1 (November 13, 2015): denied provisional relief where requests did not seek suspension of any decision contested in the Tribunal.
  - IMFAT Order No. 2016-1 (June 28, 2016): denied provisional relief where applicant failed to show irreparable harm.
  - IMFAT Judgment No. 2017-2 (December 11, 2017): request for maintaining G-4 visa status was premature where Fund had discretion to extend administrative leave without pay.

### Tribunal’s factual and legal findings on Applicant’s Request for Provisional Relief
- Two-pronged Request for Provisional Relief:
  - First prong: suspend the Fund’s decision that Applicant terminate employment of her current G-5 employee during the pendency of the Tribunal proceedings.
  - Second prong: order the Fund to “secure all necessary visa actions by the State Department” to permit the current G-5 employee to remain in Applicant’s employment during the Tribunal proceedings.
- Tribunal rulings on the two prongs:
  - The second prong does not seek suspension of a decision contested in the Tribunal and is denied on that ground.
  - The first prong does seek suspension of a decision contested in the Tribunal, but the Tribunal need not decide whether it has jurisdiction over that decision because Applicant failed to demonstrate the essential requirement for provisional relief: “irreparable harm.”
- Specific findings relevant to “irreparable harm”:
  - Applicant has been on notice for more than a year of the decision that the G-5 employee must leave her household.
  - Applicant had ample opportunity to make alternate employment arrangements with non-G-5 visa holders.
  - The Tribunal concluded Applicant has not shown that separation of the G-5 visa holder from her employment will result in “irreparable harm” to Applicant.
- Claim on behalf of the G-5 employee:
  - The Commentary contemplates that wrongful termination of a G-4 staff member might be “irreparable harm” in some contexts and should be addressed in staff rules; however, the circumstances here involve loss of employment by a G-5 visa holder as collateral to disciplinary action taken against the G-4 employer/staff member.
  - The Fund’s rules and the Tribunal’s Statute address the employment relationship between the Fund and its own staff; the Tribunal concluded that Applicant has not met the requirements for securing provisional relief on behalf of her current G-5 employee.

### Respondent’s assertions and Motion to Dismiss in Part
- Respondent’s position:
  - The Tribunal lacks jurisdiction over Applicant’s challenge to the decision to terminate Applicant’s eligibility to be a G-5 employer because the decision was effectively made by the U.S. State Department rather than by the Fund.
  - The Fund contends the decision is not an “administrative act” of the Fund as defined by Article II of the Statute (Article II defines an “administrative act” as “any individual or regulatory decision taken in the administration of the staff of the Fund”).
  - Respondent further asserts irreparable harm would arise to the Fund and other staff if the current G-5 employee’s stay were extended, potentially jeopardizing the Fund’s entire G-5 program; Respondent cites a U.S. Secretary of State Diplomatic Note, September 19, 2018, warning that failure to meet G-5 program requirements may lead the U.S. Government to “suspend participation in the program by declining to accept pre-notification requests of upcoming domestic workers for the mission member, or for all members of the mission if warranted by the circumstances.”
  - Respondent includes evidence that the State Department decided to “temporarily hold off domestic worker registration renewal appointments” for G-5 visa holders employed by Fund staff while the Fund complies with a requested review of all current G-5 contracts and wages.
- Applicant’s position:
  - Applicant alleges the Fund “actively colluded with the State Department,” that the “Fund rather than the State Department . . . determined the outcome requiring [Applicant] to fire [the current G-5 employee],” and that the “Fund actively inculpated its own staff member before the State Department.”
  - Applicant’s Comment on New Evidence argues documents newly produced support the view that the Fund and the U.S. State Department collaborated in the investigation and sanctions.
- Admissibility and disposition of the Motion to Dismiss in Part:
  - The Tribunal recognized neither the Statute nor the Rules explicitly contemplate a Motion to Dismiss in Part but found circumstances in which such a motion may be admissible.
  - Given the expedited preliminary pleadings under Rule XXI, the Tribunal admitted the Motion to Dismiss in Part because its argumentation was closely related to Respondent’s argument against provisional relief.
  - On the merits, the Tribunal concluded it was better to decide issues, including the relationship between the HRD Director’s decision and the actions of the U.S. State Department, after full briefing on the merits rather than in a piecemeal summary dismissal.
  - The Tribunal dismissed Respondent’s Motion to Dismiss in Part without prejudice to raising the same arguments in pleadings on the merits.

### Order and procedural directives
- The Tribunal ordered:
  1. Applicant’s Request for Anonymity is granted.
  2. Respondent remains under a continuing obligation to produce any documents responsive to Applicant’s Document Request No. 2.
  3. Respondent’s Motion to Strike a document from the record is granted.
  4. Applicant’s Document Request No. 3 is denied.
  5. Applicant’s Request for Provisional Relief is denied.
  6. Respondent’s Motion to Dismiss in Part is dismissed without prejudice to Respondent’s right to raise in its pleadings on the merits a challenge to the justiciability of Applicant’s challenge to the “administrative” decision.
  7. The proceedings on the merits shall resume in accordance with the schedule notified to the parties along with this Order.
- Signatories:
  - Catherine M. O’Regan, President
  - Andrés Rigo Sureda, Judge
  - Edith Brown Weiss, Judge
  - /s/ Catherine M. O’Regan, President
  - /s/ Celia Goldman, Registrar
- Location and date: Washington, D.C., October 10, 2019.

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_Source: https://www.imf.org/-/media/files/imfat/o2019-1.pdf_